For many HR professionals, fear of union campaigns went out along with black-and-white TVs and pay telephones.

The percentage of workers belonging to a union these days runs at about 11%, down from more than 20% in 1983. And union membership in the private sector has fallen below 7%, a level not seen since 1932.

But a pair of controversial rulings by the National Labor Relations Board (NLRB) last week has pumped new life in labor unions, giving them sweeping new powers to organize workers.

The administration handed down two Christmas gifts to labor: the first ruling cuts in half the number of days it would take to bring a union election to a vote; the second says employees can use company email systems to rallying organizing efforts. Here a quick summary:

PREPARE FOR 'AMBUSH ELECTIONS.' Under current rules, an automatic one-month delay follows after the NLRB receives a petition for a union election. But the new final rule (which takes effect April 14) eliminates the one-month pause, clearing the way for so-called “ambush” or “quickie” elections.

Currently, the average time period for union elections is 42 days after the union requests a vote. Once these new rules take effect, most elections will likely be held within 10 to 21 days.

While the NLRB says this will “streamline” elections, critics say voting will happen so quickly that employers stand little chance of persuading employees to reject a union.

"While unions will have months to campaign and sign up em­­ploy­­ees on authorization cards, an em­­ployer will be left with only days to respond and provide employees with their position on the benefit of remaining union free,” says attorney David Rittof, president of Modern Management, Inc., who will speak on the topic at the 2015 Labor and Employment Law Advanced Practices (LEAP) conference in April.

Also, employers will have to provide more contact info to unions, including employees’ personal phone numbers and email addresses.

“Employers will need to be even more vigilant in advance planning and training to respond to any union activity,” says Rittof. “Readi­­ness plans must be drafted and training should be refreshed to be prepared for the likely onslaught of union drives.”

NEW RIGHTS TO EMAIL ORGANIZING. If your organization has a blanket policy that prohibits workers from using the organization’s email for personal matters, it’s time to revise it.

In a 3-2 ruling on Dec. 11, the NLRB said employees have the right to use their employer’s email system (during off-duty time) to engage in legally protected communications, including discussing wages and even organizing a union. The ruling does not prevent employers from monitoring email. (Purple Communications, 21-CA-095151)

The decision overturned a 2007 NLRB ruling (Register Guard) that allowed employers to forbid em­­ploy­­ees from using company email for union organizing as long as they weren’t permitted to use email for any other nonbusiness purpose.

The decision is a “game changer,” according to the Fisher & Phillips law, and could lead many employers to reconsider whether some employees should have access to company email at all.

Look for the Purple Communications decision to be challenged in the federal appellate courts and possibly even at the U.S. Supreme Court. Among the key issues left unanswered by the NLRB ruling: The ruling said employers can justify a blanket ban on nonwork time use of email only by demonstrating that “special circumstances make the ban necessary to maintain production or discipline.” The NLRB said this would be a “rare case,” but future court rulings will still have to draw the line on what constitutes “special circumstances” sufficient to permit employers to ban nonwork email use.

Union Campaigns: How Should an Organization Respond?

These two rulings increase the chance that your organization could become the target of a union organizing campaign. Strict rules govern how employers are legally allowed to respond.

What Employers Can’t Do

The following covers some activities that constitute unfair labor practices. Make sure that you don’t:

Discriminate in any way against any employee for participating in union activities. This prohibition applies to all aspects of employee relations.

Promise or grant benefits to your employees (such as wage increases, holidays, benefits or improvements in working conditions) to encourage them to abandon the union.

Make threats based on employee support of the union, including threats of discharge, layoffs, plant closure or discontinuing current benefits.

Engage in surveillance of employees to determine their views on the union.

Take a straw vote of employees as to whether they favor or don’t favor the union, except in special circumstances and in accordance with legally mandated procedures designed to protect employees. (Consult your legal counsel.)

Although not necessarily unfair labor practices, the following conduct may result in invalidation of an election:

Campaigning on company time and premises within 24 hours of an NLRB-scheduled election. Meetings held off-premises may take place under special circumstances.

Reproducing and distributing official NLRB ballots and showing employees how to mark them.

Discussing the union with employees in a supervisor’s office, regardless of the noncoercive tenor of your remarks.

Prohibiting distribution of union literature in nonwork areas during nonwork time, such as in the lunchroom during the lunch hour.

Requiring employees to wear “Vote No” buttons in the plant or office.

What Employers Can Do

You may hold meetings with your employees on company time and property to answer questions and discuss the company’s position and unionization. Just make sure the meetings aren’t held in a supervisor’s office. Talk with employees at their own workstations or in a group meeting. You can also mail literature to the employees’ homes, stating the company’s position, but be careful what you say.

Here are some of the things you can say:

Describe the good features of working for your company, such as existing benefits, job security and steady work.

Remind them that signing union authorization cards doesn't mean they must vote for the union.

Inform them of the disadvantages of belonging to a union, such as the possibility of strikes, serving on picket lines, paying dues, fines and assessments.

Explain the meaning of the phrases “dues checkoff” and “union shop.”

Inform them of any prior experience you’ve had with unions and what facts you know about the particular union that’s trying to organize them.

Tell your employees how their wages and benefits compare with other unionized and nonunionized companies with less desirable packages.

Disclose the names of known gangsters or other undesirable elements who may be or have been active in the union, provided this is accurate information that can be verified by official sources.

Inform them that, insofar as their status with the company is concerned, they are free to join or not to join any organization they choose.

Express the hope that your employees vote against this or any union.

A lawfully waged campaign may defeat an organizing drive. Violation of the rules of conduct, however, can result in invalidation of a company-won election or certification of a union that lost an election. It’s important, therefore, that you seek legal advice promptly.

Remember: Just because a union-organizing campaign is under way doesn’t mean you have to relax discipline. You can hand out punishment for infractions of rules even to the most vocal of the union sympathizers as long as you can show that the sanctions are consistent with the way you handled similar situations before the organizing drive began.

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